If the court buys the Michigan landowners' arguments, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency would have to stop using rules that have been on the books for 30 years to protect wetlands and water quality in all the nation's streams. The states would then assume responsibility for regulating wetland developments and pollution discharges into ditches and streams.

The result would likely be a patchwork of state regulations that could stymie federal efforts to clean up pollution in interstate bodies of water like the Great Lakes, the Chesapeake Bay and the Mississippi River, critics say. Downstream states, like Louisiana, would be at the mercy of upstream states, like Iowa, to do their part to limit polluters, critics say. Attorneys general from 34 states and the District of Columbia have filed court briefs asking that federal controls be maintained.

"These federal environmental laws were designed to help keep peace among the states, to give them a way to address upstream pollution problems coming from their neighbors," said Howard Fox, a lawyer for the environmental group Earthjustice. "In Louisiana, pollution comes as far away as Wyoming and Minnesota."

Rob Rivett, a lawyer with the Pacific Legal Foundation who is representing Rapanos, said states could create interstate compacts to deal with pollution problems. Under the Constitution, Congress cannot interfere with states' regulation of local land and water uses unless those uses impact interstate commerce, he said. Federal agencies can regulate only those wetlands and waters next to larger rivers and lakes that traditionally have been used by boats in interstate commerce, he said.

"The Corps of Engineers is trying to turn (the Clean Water Act) into a federal land-use control program," Rivett said.

EDIT: per Wanigas
This will being interesting to follow because
it is not so much about the definition of what a wetland is; but more of where they are they are.
Had you heard of these cases yet ?
There has not been any local coverage about them here along the Ohio River.

I have heard of these cases, and I don't know enough about them to really comment. If the EPA is shown to be arbitrarily chosing wetlands to protect without any method to their madness, then they should have the rule abolished. If the EPA has 30 years of a well founded system of protecting the USA's best wetlands and act as a safety net for those states that don't have good wetland protection, then they should stand.

What do you mean I can't plan? My SimCity has 390,269 people with a 99% happiness rating (1/23/2017)!

Justice David Souter, questioning the attorney for one of the property owners, John Rapanos, suggested that limiting the law's reach could allow an "end-run around the regulation" by polluters.

"All you have to do is dump the pollutant upstream far away from the watershed, and you get away scot-free," Souter said.

But the government was questioned by Chief Justice John Roberts and Justice Antonin Scalia, who said an overly broad interpretation of the law might give regulators jurisdiction over storm drains and ditches.

"I don't know how a storm drain is a water of the United States," Scalia said.

Roberts told Solicitor General Paul Clement that "at some point the definition of tributary has to have an end" or it would go beyond the intention of Congress.

"At some point, the definition of a tributary has to have an end." — Chief Justice John Roberts.

"The justices clearly recognized that declaring every drainage ditch a potential tributary to a navigable water would give the federal government virtually unlimited control over land use, since most roads and many private properties in America are bordered by drainage ditches or storm drains."
— Patrick J. Wright, senior legal analyst for the Michigan-based Mackinac Center for Public Policy.

Just FYI, the Mackinac Center Policy Group is a conservative think tank based here is Michigan. I would say that quote is an extreme misrepresentation and implies that the feds, since the inception of the Clean Water Act, have been acting arbitrarily and capriciously in matters of local land use policy. That isn't the case. Mr. Rapanos filled in a wetland in Michigan and was asked by the State to mitigate and pay a fine for violating the law- he was never told he couldn't use his property.

EDIT: Clarification with more details about the action against Mr. Rapanos, from Yahoo! news:

In the case of John and Judith Rapanos, the critical acres are 20 miles from the nearest navigable waterway. In December 1988 they applied for permission to build a shopping center on the site. There was a drawback: Much of the site probably would qualify as protected "wetlands" under federal law. If so, the property could not be cleared and filled without approval from the Corps of Engineers.

JNA,
Just a suggestion: Call, email or write your local Corps of Engineers District office or look on the web under "Corps of Engineers Regulatory Offices" and ask the Corps the definition of "Navigable Waters of the United States." That definition drives their authority to protect wetlands and streams in the USA under the Clean Water Act.

I'm sure that you will find their definition to be rather broad and justifiably so for various historic reasons. You would be amazed to see the reach of their enforcement under the Clean Water Act and it has nothing to do with land use controls - just good ecological sense.

We will be in deep trouble if the Court finds in favor of the landowners in this battle, there won't be a wetland left standing if they win and the potential for suits based upon passed permit denials will be endless. Some states have massive wetlands perched on mountaintops that would be perfect ski village developments if they weren't protected. Root for the Corps on this one.

Doubt the Corps will win this one. Roberts will try to pop his cherry as a "true" conservative and side with the landowners. Of course, either way this case is decided won't matter in Florida, where the Corps gives out dredge and fill permits like halloween candy.

The Supreme Court ruled 5-4 Monday that regulators may have misinterpreted the federal Clean Water Act in refusing to allow two Michigan property owners to build a shopping mall and condos on wetlands they own.

At the same time, justices could not reach a consensus on whether government wetlands protections extend miles away from waterways.

Did it? I am having trouble making sense out of this one. It looks like it was close to taking a big hit (based on Scalia, Alito and Roberts opinions) but instead the case was remanded to lower courts to determine whether the waterways would be regulated under the CWA.

Well, this has to be the end of conservative's complaints about judicial activism by liberals. The plurality clearly demonstrates that conservative judges are just as apt to re-write the law to suit their ideology as liberals. What's most notable, however, is that this exercise in ideology provides not one iota of relief to the landowners who brought the case. It is not only a clear example of the judicial activism that conservatives whined about for years, but also a clear example of how ideological conservatives are far more interested in their "principles" than they are in actually helping folks out.

I wouldn't go hitting the panic button yet. In all likelihood Kennedy's opinion will be used by lower courts in the future to determine applicability of the CWA and Wetlands stuff. That still leaves it substantially open for interpretation in the lower courts. If history is an indication, the lower courts will still probably continue to give the benefit of the doubt to the government, IMHO.

I think this case is getting more press time than it really deserves.

"Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

Good Read....

Check out the latest Planning and Enironmental Law Journal viewpoint by Dwight H. Merriam, FAICP "Up the Creek Without a Paddle: The U.S. Supreme Court Decides Little in Deciding Rapanos and Carabell"

Looks like the Corps has their work cut out for them......again....
Anyone out there believe our current Congress will "help" clarify wetland/connectivity issues?

My jurisdiction has already been told by the Corps that they "may" not be interested in enforcement until they can figure out what to do next......(my paraphrasing of what I think they said...)

“The way of acquiescence leads to moral and spiritual suicide. The way of violence leads to bitterness in the survivors and brutality in the destroyers. But, the way of non-violence leads to redemption and the creation of the beloved community.”
Dr. Martin Luther King, Jr.
- See more at: http://www.thekingcenter.org/king-ph....r7W02j3S.dpuf